Scott v. Palmer et al

Filing 213

ORDER Denying 212 Motion to Appoint Counsel, signed by Magistrate Judge Sheila K. Oberto on 6/2/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:09-cv-01329-SKO (PC)

FLOYD SCOTT,
Plaintiff,
v.

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 212)

J. PALMER, et al.,
Defendants.

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On May 28, 2015, plaintiff filed a motion seeking the appointment of counsel.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

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plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
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In the present case, the court does not find the required exceptional circumstances.

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Even if it is assumed that plaintiff is not well versed in the law and that he has made serious

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allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is

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faced with similar cases almost daily. Further, (1) the court cannot make a determination that

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plaintiff is likely to succeed on the merits because witness credibility at trial plays a key role in

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the resolution of plaintiff’s claims; (2) the legal issue in this case – use of excessive physical force

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- is not complex; and (3) the record evidences plaintiff’s ability to articulate his claims pro se. Id.

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For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED.

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IT IS SO ORDERED.
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Dated:

June 2, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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